RICHARD SCHWEIKER, ET AL., PETITIONERS V. JAMES CHILICKY, ET AL. No. 86-1781 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the Petitioners In our opening brief we explained that three doctrines well established in this Court's jurisprudence converge to make inappropriate the Bivens action respondents have brought here: explicit preclusion by Congress, the existence of a comprehensive alternative as was found in Bush v. Lucas, and special factors counselling hesitation. Section 405 creates an unusually comprehensive remedial scheme for the massive social security program, a scheme that Congress clearly intended to be exclusive and that would be gravely disrupted by the addition of a Bivens remedy. That scheme both in its literal terms and as interpreted by this Court in cases such as Bowen v. City of New York and Califano v. Yamasaki provides claimants with unusually liberal opportunities to present any grievances they may have and to obtain relief both for episodic and systematic departures from law. No grounds of complaint -- statutory or constitutional -- are foreclosed from administrative and ultimately judicial review in ordinary course, particularly not the very ones of which these respondents complain. Thus it is hard to see why the heavy theoretical artillery of the Hart dialogue (Resp. Br. 34 n.38) dealing with precluding all judicial review of constitutional claims has been called into action in this case. What the "unusually protective" (Heckler v. Day, 467 U.S. 104, 106 (1984)) review procedures in 405(g) do not do is offer claimants what at common law would be called consequential damages, limiting them rather, as in Bush v. Lucas, to reinstatement and retroactive benefits. See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 88 n.32 (1978) ("statutes limiting liability are relatively commonplace and have consistently been enforced by the courts"). We acknowledge at the outset the distress that any person must feel at the instances of hardship recited by amici and respondents. In any system that processes over two million claims a year, mistakes such as those recounted can be completely avoided only by abdicating altogether responsibility for weeding out non-meritorious claims. However gratifying such an approach might be, its financial cost would be such that the overall level of benefits to all claimants would have to be cut drastically. Indeed it is something like that situation that Congress believed it faced when it mandated the Continuing Disability Review program in 1980. In a system which processes such a large number of cases, establishing classifications and presumptive frequencies is actuarially warranted and an inevitable tool of managerial control. /1/ Where these systematic devices have proven either too lax or too harsh, the agency itself will often retune them on its own initiative; but where such internal correction is either inadequate or too slow in coming, Congress has not hesitated to intervene and modify the process. If the bureaucracy at any level fails to follow congressional directives, review and relief are available in court. Thus Section 405 provides ample means for correcting errors, whether individual or systemic. Little would be accomplished by allowing a parallel procedure which threatens government officials with ruinous personal liability and which may be invoked simply be adding adverbs of constitutional import to a complaint alleging the improper administrative and adjudicative handling of claims. 1. Respondents' and amicus ACLU's principal contention is that, by seeking to deny disability claimants a Bivens remedy in this context, petitioners are attempting to preclude all review of their due process claims. Such preclusion of review, they contend, would raise "serious questions" as to the constitutionality of the Social Security Act (see Resp. Br. 11, 21-26; ACLU Br. 6, 25-33). In fact, however, constitutional as well as statutory and evidentiary arguments are available to the terminated beneficiary under Section 405(g) in his effort to show that the termination was wrongful and that his benefits should be reinstated. In this case, respondents had their benefits fully reinstated followingadministrative review. They did not receive, because the statute does not provide, damages for emotional distress or indirect damages stemming from the loss of goods and services they could have bought with those benefits. But that respondents have not received all the relief that they would like does not suggest that review of their due process complaint has been precluded. That baseless contention is, however, the premise of every argument made by respondents and amici before this Court. Respondents repeatedly assert (Br. 10-11, 17-18, 21, 24) that since their benefits never should have been taken from them in the first place, restoration of past and current benefits provides "no post-deprivation remedy at all for the constitutional violations they allege" (id. at 11). It merely returns "the disability benefits that all agree respondents should never have lost in the first place" (id. at 10). But the same argument could have been made on behalf of the plaintiff in Bush v. Lucas, 462 U.S. 367 (1983), who was denied a Bivens action as a supplement to the remedies provided him under the civil service laws. He should never have been demoted; but that does not mean that "mere" restoration of his position with back pay does not constitute redress for the constitutional violation. On the contrary, this Court in Bush concluded (462 U.S. at 368, 378 n.14) that such a remedy was both "constitutionally adequate" and sufficiently "meaningful" to forestall a Bivens remedy. In this case, as in Bush, retroactive restoration of benefits is a remedy for the alleged constitutional violation, notwithstanding that it does not provide relief from every form of injury resulting from the improper action. If there were no remedy for the alleged constitutional violation which led to a loss of benefits, then obviously there would be no restoration whatsoever of those benefits. Respondents seek to distinguish Bush in several ways. They contend (Br. 4) that the "system of review" provided by Congress in the SSA only provides a remedy for "cases involving mistaken denial or termination," while the civil service laws were "specifically designed" to provide remedies for constitutional violations (Br. 20). But this Court has clearly held that litigants can raise due process and other constitutional challenges to administrative action within Section 405(g). Weinberger v. Salfi, 422 U.S. 749, 760-761 (1975); Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Heckler v. Ringer, 466 U.S. 602, 615 (1984). Moreover, 405(g) has been broadly interpreted to permit class actions for injunctive and declaratory relief for alleged constitutional violations. Califano v. Yamasaki, 442 U.S. 682 (1979); see also Heckler v. Day, 467 U.S. 104 (1984) (suit for state-wide injunctive relief for alleged due process violations cognizable under Section 405(g)). /2/ Furthermore, the Court has construed the "final decision" requirement in Section 405(g) to permit an early resort to the courts on certain constitutional claims that are collateral to the claim for benefits where risk of irreparable harm exists (Weinberger v. Salfi; Mathews v. Eldridge), or based on allegations of systemwide abuse. Bowen v. City of New York, 476 U.S. 462 (1986). Respondents' assertion that 405(g) is so limited as to preclude any review of their allegations of constitutional violations and systematic abuse of the SSA process is therefore flatly belied by this Court's cases, as well as by their own complaint (see Amended Complaint para. 6), which sought injunctive and declaratory relief for their claims under 405(g). /3/ Respondents also argue that this case differs from Bush v. Lucas in that wrongfully terminated disability recipients suffer "categories of harm entirely independent of the sums withheld" (Br. 14-15). It is true that the hardship suffered by such persons will generally be greater than for fired civil servants, because a disabled person's inability to work and substantial personal expenses often leave him or her in a precarious financial condition. That hardship accounts for Congress's 1984 decision to permit terminated beneficiaries to continue to receive benefits through the ALJ hearing stage. But it provides no support whatsoever for respondents' contention that restoration of benefits is "no post-deprivation remedy at all for the constitutional violations they allege" (Br. 11). Additional injuries proximately caused by an alleged wrong do not change the nature of the wrong alleged, and the fact that a particular remedy corrects only some, but not all of those injuries, does not change the fact that it provides some relief for the wrong in question. Respondents and amici seem to think that by drawing out the chain of causation they have created a new constitutional wrong that is not addressed at all by 405(g). That is plainly incorrect. /4/ 2. In contesting our argument that Section 405(h) is an express declaration by Congress that the remedies it has provided in 405(g) are the exclusive mode or redress for a wrongful termination of benefits, respondents have simply provided the Court (Br. 27-37) with several additional variations on their contention that Section 405(g)'s denial of consequential damages denies them all redress for unconstitutionally wrongful benefit denials. "(R)eading Section 405(h) to preclude federal question jurisdiction over those claims," they argue (Br. 33 (emphasis in original)) "denies respondents not only a damages remedy but any judicial forum in which to challenge the petitioners' allegedly unconstitutional conduct." It is unnecessary to belabor this point further. Several observations are in order, however, concerning the specific operation of Section 405(g) and (h). a. Respondents contend that the second sentence of Section 405(h) -- providing that "(n)o findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided" -- "has no application whatever" to their claims (Br. 29). They base this argument on Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 679 (1986), where this Court construed the phrase "decision of the Secretary" to mean those determinations made by "the Secretary after a hearing." Respondents argue that they are challenging not the decision of the Secretary after a hearing (which, in fact, restored their benefits) but rather "the initial abuses by state officials, acting under color of federal law, in unconstitutionally terminating their benefits in the first place" (Br. 28). This argument ignores the clear intent of the first two sentences of 405(h) to "assure that administrative exhaustion will be required." Weinberger v. Salfi, 422 U.S. 749, 757 (1975). In Michigan Academy, there was no administrative mechanism for challenging the regulation in question, and the Court therefore permitted review of the regulation under Section 1331 "because there is no hearing, and thus no administrative remedy to exhaust" (476 U.S. at 679 n.8). Here, by contrast, there is an administrative remedy under Section 405(g) for abuses by state officials, and the only way respondents could challenge those abuses was by obtaining a "decision of the Secretary made after a hearing." /5/ Once they have done so, the second sentence of Section 405(h) makes clear that, if still dissatisfied, they may seek judicial review, but only pursuant to 405(g) and only to the extent of the remedies provided by 405(g). Alternatively, respondents contend (Br. 29) that Michigan Academy indicates that Section 405(h) has no application to attacks upon "(b)roadly applied policies and practices" of the Secretary. But that is plainly incorrect. In Michigan Academy, this Court emphasized that there was simply no statutory review procedure by which to present the constitutional challenge to the regulation at issue (476 U.S. at 681 n.12). By allowing such a challenge under general federal question jurisdiction, therefore, the Court "avoid(ed) the 'serious constitutional question' that would arise if we construed (the review provision) to deny a judicial forum for constitutional claims arising under Part B of the Medicare program" (ibid.). No such "serious constitutional question" arises here because respondents' challenge to the policies and practices of the Secretary are fully cognizable within Section 405(g), either in a class action for injunctive and declaratory relief (Yamasaki; Heckler v. Day) or through administrative proceedings followed by judicial review. Those practices and policies only affect respondents to the extent of a denial of their benefits at some stage of the process. Injunctive or declaratory relief reforming this process in general or a reversal of a particular decision is therefore a remedy for the alleged wrong, notwithstanding that consequential damages are not provided by the statute. /6/ b. Respondents also contend (Br. 31) that we have advanced an "indefensibly expansive reading" of the third sentence of Section 405(h), which bars federal question jurisdiction on any claims "arising under" the Social Security Act. Their claims, they assert, do not arise under the Act because they seek a form of relief not provided by the Act. This case, however, "arises under" the Act because Section 405(g) provides a remedy for the wrongful termination of benefits, whether the legal error is statutory or constitutional in nature. Weinberger v. Salfi, 422 U.S. at 760-761. Certainly a claim for restoration of benefits, alleging a violation of due process, would have to proceed under 405(g) because due process claims are fully cognizable within 405(g) (Mathews v. Eldridge). The nature of the relief sought does not change the character of the alleged wrong (cf. Davis v. Passman, 442 U.S. 228, 244 (1979) (the existence of a constitutional claim does not settle the further question of "whether a damages remedy is an appropriate form of relief")), and it cannot be allowed to determine whether a claim arises under the Act. Consequential damages in Bivens suit are a form of relief available on some constitutional claims; but the request for such relief is not itself a "claim" in the sense that term is used in Section 405(h). Respondents' claim is that their benefits were terminated without due process, and the third sentence of 405(h) makes clear that such a claim cannot give rise to a suit under Section 1331 but can only proceed pursuant to, and result in the remedies provided by, Section 405(g). Thus, the proper inference is not that the unavailability of consequential damages for due process violations under 405(g) makes them available under 1331; it is that they are not available at all. Respondents correctly point out (Br. 15) that the prior decisions of this Court applying Section 405(h) "all dealt with attempted end-runs by plaintiffs seeking benefits." The plaintiffs in those cases were trying to get a court to award them benefits without first exhausting their administrative remedies. See Heckler v. Ringer; Mathews v. Eldridge; Weinberger v. Salfi. Respondents, by contrast, have already had their benefits restored in full by the administrative process. But respondents still propose an end-run around the social security system constructed by Congress. It is simply a broader and more audacious end-run than any this Court has hitherto considered. Respondents are not seeking "premature judicial intervention" in the statutory scheme (Br. 36); they are seeking complete judicial reconstruction of the remedies provided by Congress. Congress could have provided within Section 405(g) for a restoration of benefits with interest or for other consequential damages to recompense the interim loss. But it did not. And Section 405(h) plainly states that such additional awards are therefore precluded. Congress could not have more expressly stated that "(n)o action" may be brought under Section 1331 (which is the sole jurisdictional predicate for a Bivens action) against "any officer or employee" on "any claim arising under" the Act (emphasis added). /7/ 3. Respondents offer two primary arguments bearing on our contention that Congress, in the Social Security Act, has sufficiently occupied the field to render "inappropriate," even apart from Section 405(h), the implication of "a new judicial remedy" (Bush v. Lucas, 462 U.S. at 368). a. Respondents' principal argument (Br. 43-44) is that the reasoning of Bush v. Lucas has no significance beyond the limited context of federal employment. But the principle established in Bush v. Lucas cannot be so limited. The "special factor" repeatedly stressed by the Court in Bush v. Lucas was not the employment relationship, but the fact that that relationship was "governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States" (462 U.S. at 368). See also id. at 385, 386, 388. /8/ As a result, the Court stated the question at issue in that case in general terms, as "whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue" (id. at 388). That same exact question is posed in this case. Unlike in Bivens and Davis v. Passman, the question here is "not what remedy the court should provide for a wrong that would otherwise go unredressed" (Bush v. Lucas, 462 U.S. at 388). Congress has provided a remedy in the form of reinstatement with back benefits. Thus, respondents are again off the mark when they argue (Br. 41 (quoting Michigan Academy, 476 U.S. at 671)) that for the Social Security Act to preempt a Bivens remedy "'clear and convincing evidence' * * * of such a legislative intent must be forthcoming, for this Court has always resisted attributing to Congress the desire to cut victims off from any possibility of collecting damages." It is true, as this Court has noted, that "(a)s a general matter, the mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others." Michigan Academy, 467 U.S. at 674 (internal quotation marks omitted). But the acts in question here, the alleged due process violations, are reviewable under Section 405(g). /9/ Congress has simply limited the scope of redress available to those affected by such actions, and no special proof of congressional intent should be necessary to give effect to that limitation beyond the fact that the legislative scheme is comprehensive and provides a "meaningful" and "constitutionally adequate" remedy. The case is also plainly distinguishable from Carlson v. Green, 446 U.S. 14 (1980), where, although Congress had provided a remedy for the wrong in question under the Federal Tort Claims Act, the legislative history made it "crystal clear" that Congress intended victims of the sort of intentional wrongdoing alleged there to have both a Bivens action and an action under the FTCA against the United States (id. at 20). Here, by contrast, no indication is to be found in the legislative history of the SSA or any of its amendments that Congress thought it was providing anything other than a complete and exclusive remedy for wrongful (whether unconstitutional or merely mistaken) terminations of disability benefits. b. Contrary to the general thrust of respondents' brief, the remedy provided by Congress in Section 405(g) for an unconstitutional termination of benefits is not constitutionally deficient. This remedy precisely parallels the remedy at issue in Bush v. Lucas, which the Court found to be meaningful and constitutionally adequate, and which respondents frankly acknowledge (Br. 15 n.18) "fully restored" Bush's "reputation and his financial fortunes." Any difference between this case and Bush can only lie in the measure of the hardship suffered by respondents because of their already precarious financial condition and their physical inability to work. That hardship may be appreciable. But this Court has already held in Mathews v. Eldridge that the fact that restoration with back benefits does not constitute "full relief" for a wrongful termination of disability benefits does not render the remedial scheme constitutionally infirm. The plaintiff in Mathews (424 U.S. at 331 (footnote omitted)) also "raised at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments." The Court nonetheless concluded that a post-deprivation hearing with subsequent restoration of benefits was sufficient to satisfy the dictates of due process. It follows that the restoration of respondents' benefits following a hearing was a constitutionally adequate and meaningful remedy for the wrongful termination of those benefits by the state agency. Moreover, since Mathews v. Eldridge, several of this Court's cases have construed the remedy available under Section 405(g) in ways demonstrating its flexibility and capacity to deal with claims of potentially irreparable harm stemming from unconstitutional action by the agency. This Court recognized in City of New York, 476 U.S. at 483, that a wrongful termination carries with it the prospect of irreparable harm and, as a consequence, relaxed the exhaustion requirements of 405(g) and permitted an immediate challenge to an "internal policy of the Secretary of (HHS) that had the effect of denying benefits to numerous claimants who may have been entitled to them" (476 U.S. at 469). Section 405(g) also permits nationwide class actions and injunctive relief (Califano v. Yamasaki, 442 U.S. at 705). And the Court has construed the statutory "final decision" requirement in Section 405(g) to permit challenges to "an unlawful, unpublished policy" (City of New York, 476 U.S. at 473), as well as early resort to the courts where the claimant asserts a due process right that would be irretrievably lost if judicial review were postponed until after he fully exhausted his administrative remedies (Mathews v. Eldridge). This relaxation, this broadening of the types of and avenues to relief under 405(g), further indicates that respondents have a meaningful remedy for unconstitutional terminations without the overlay of a Bivens cause of action. Congress recognized that claimants might experience financial hardship while they pursued their administrative remedies (Heckler v. Ringer, 466 U.S. at 627), and acted in 1984 to relieve that hardship in certain circumstances. /10/ But Congress has continued to regard a retroactive award of benefits at a later stage of the administrative process as a fully adequate remedy for an erroneous denial of benefits at a preliminary stage of that process. See Mathews v. Eldridge, 424 U.S. at 339-340. "If the balance is to be struck anew, the decision must come from Congress and not from this Court." Heckler v. Ringer, 466 U.S. at 627. 4. We argued in our opening brief that the size of the various social security programs constitutes an additional "special factor" counselling against judicial recognition of a Bivens remedy. Respondents, by contrast, attempt (Br. 2-3 n.2, 47) to minimize the practical consequences of the remedy they seek and contend (id. at 46) that, in any event, such "inconvenience" is a small price to pay for "constitutional government." But to permit disappointed claimants the option of a Bivens remedy in addition to the Section 405(g) procedures for restoring their benefits could not be carefully limited as respondents suggest. And the price we would pay for such additional relief would be a complete disruption of this carefully crafted and constantly monitored congressional scheme. This Court has noted that the SSA hearing system is "'probably the largest adjudicative agency in the western world.'" Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (citation omitted). The size and extent of the administrative structure, coupled with the fact that its adjudicative function inherently spawns disagreement over results, suggest that it would be rendered unworkable by the overlay of a Bivens remedy. /11/ Nothing could be easier than to append to a claim that one's benefits were wrongfully terminated or withheld an additional claim that the responsible official was guilty of an "intentional disregard of dispositive favorable evidence," or a "failure to review impartially adverse decisions," or an "arbitrary reversal of favorable decisions" or a "denial of benefits based on the type of disabling impairment" (Pet. App. 13a-14a). Indeed, these are just ways of saying, with a rhetorical emphasis all too familiar to respondents, that the official got it wrong. /12/ The absolute immunity that protects administrative law judges, Butz v. Ecanomou, 438 U.S. 478, 508-517 (1978), would probably not reach state officials making the initial termination decisions and higher officials (like petitioners) who are setting policy (id. at 512). Yet the same considerations that counsel in favor of absolute immunity for judges, prosecutors and ALJs counsel against creation of a Bivens remedy in this context. "The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus," and fear of the devastating potential liability attendant upon such a claim would inevitably "harrass() and intimidat(e)" agency officials (ibid.), thereby skewing an adjudicative process that Congress has taken great pains to define. Furthermore, the safeguard of judicial review and "the correctability of error on appeal" are sufficient "checks on malicious action" by agency officials responsible for the adjudication without "the need for private damages actions as a means of controlling unconstitutional conduct" (ibid.). /13/ The 1984 SSA amendments, which permit terminated beneficiaries to receive benefits from the time of the initial determination through the ALJ hearing stage, would not substantially limit the adverse effects of a Bivens remedy. From the ALJ decision on, any adverse decision could give rise to a Bivens claim, and every benefit denial claim brought to court under Section 405(g) would be bound to contain an additional claim for Bivens damages under Section 1331. Furthermore, consequential damages for attorneys' fees and for emotional distress might not be limited to cases in which benefits were actually terminated. Thus, in their Amended Complaint (para. 241), the original plaintiffs in this case made clear that they were seeking damages for costs and for emotional distress notwithstanding that some of those plaintiffs never had their benefits interrupted for a moment. Damages for emotional distress might not be limited even to cases in which benefits were wrongfully terminated. See Carey v. Piphus, 435 U.S. 247, 263-264 (1978) (damages for emotional distress may be available under Section 1983 upon proof that the injury resulted from a violation of procedural due process even though the adverse substantive action turned out to have been justified). In a massive adjudicatory system of this sort, the ballast can easily shift, permitting too many or too few claims. The only remedy for such overbalancing is a push in the other direction. Congress gave one such push in 1980 and another, in the opposite direction, in 1984. /14/ The problem of how tightly or loosely the system should be administered is in essence political, susceptible to political solutions. Policy-makers may not barter away the due process rights of beneficiaries. But they may define the conditions upon which entitlement arises, and the administrative procedures through which terminated benefits may be restored. /15/ Fundamental changes in the procedures established by Congress -- through which the courts can award back beneftis and issue injunctions, but not award consequential damages -- must await further action by Congress. The remedy for an essentially political disagreement over how tightly or loosely the system should be administered does not lie in a suit for personal damages against the head of the agency. The decision of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General FEBRUARY 1988 /1/ See Califano v. Boles, 443 U.S. 282, 285 (1979) ("Fairness can best be assured by Congress and the Social Security Administration through sound managerial techniques and quality control designed to achieve an acceptable rate of error."). /2/ In the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, Section 2(d), 98 Stat. 1797-1798, Congress prohibited the certification of new classes on the issue of medical improvement. But other class actions were unaffected. /3/ Respondents also attempt (Br. 20) to distinguish Bush v. Lucas on the grounds that Bush could have been demoted or dismissed for such cause as would promote the efficiency of the service. Thus, "Bush's 'entitlement' to continued employment was decisively qualified" and "the remedies Congress afforded him * * * were available only because Congress had created" a remedial scheme designed to correct the alleged constitutional violation (ibid. (emphasis in original)). Respondents argue (Br. 20 & n.26) that their own reinstatement, by contrast, was "just a restoration of something to which (they were) entitled regardless of the government's interests and regardless of any showing of abuse." Bush, however, had a statutory right to be dismissed only for "cause." That right is comparable to "the interest of an individual in continued receipt of (disability) benefits (which is also) a statutorily created 'property' interest protected by the Fifth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976), citing Arnett v. Kennedy, 416 U.S. 134, 166 (1974) (Powell, J., concurring in part), and Board of Regents v. Roth, 408 U.S. 564, 576-578 (1972). Thus, Bush's entitlement to continued employment provided there was no cause for dismissal was no more "decisively qualified" than respondents' right to continued benefits provided they were still disabled. Amicus ACLU argues (Br. 6) that the 405(g) review process cannot possibly remedy respondents' wrongs because "respondents' alleged injuries flow from the Secretary's corruption" of that process. Since "the essence of respondents' charge is that the integrity of the administrative process has been corrupted by interests external and antithetical to the rule of law," the ACLU contends that a separate forum and a separate remedy must be provided for that claim. But even setting aside the fact that this supposedly "corrupt()" process in fact restored respondents' benefits in full, this argument simply ignores the judicial review provision in Section 405(g) as interpreted by the series of cases discussed in text. Courts can and do consider under 405(g) constitutional challenges to the administrative process, including claims of systemwide abuse. /4/ Respondents rely in part on a recent decision by this Court under the Takings Clause to support their assertion that Section 405(g) leaves unreviewable certain claims of constitutional wrongs, and therefore requires recognition of an implied constitutional remedy. First English Evangelical Lutheran Church v. County of Los Angeles, No. 85-1199 (June 9, 1987). We do not read their brief as asserting a claim under the Takings Clause, and any such argument would obviously be untenable since no Takings Clause claim appears in respondents' complaint and none was ever raised or considered below. Respondents apparently seek to argue by analogy, however, that just as First English recognized a damage remedy under the Takings Clause for a temporary taking of property, there should be an implied cause of action of some sort for the temporary deprivation of disability benefits. The government is not "relieved of paying compensation for having temporarily taken someone's property so long as the property was eventually given back" (Br. 16). But that analogy is inappropriate as a justification for the present suit. First English involved a claim against a county under the Takings Clause of the Fifth Amendment for the temporary deprivation of a traditional form of property, and this Court concluded that the constitution mandated that just compensation be paid. In this case a violation of the Due Process Clause is alleged and the remedy sought is damages from government officials in their personal capacity. There is no reason to suppose that the nature and measure of a money judgment under the Takings Clause carry over to all other consitutional provisions or translate in other contexts into a Bivens action against individual officials. Futhermore, no "takings" action could even be brought against the United States, much less an individual official, for a temporary loss of benefits where the "property" interest in question is wholly a creature of statute and the same statute that provides the benefits also sets the procedures that must be followed to recover terminated benefits. See, e.g., Nollan v. California Coastal Comm'n, No. 86-133 (June 26, 1987), slip op. 7-8 n.2; Bowen v. Gilliard, No. 86-509 (June 25, 1987), slip op. 16-21; Richardson v. Belcher, 404 U.S. 78, 80-81 (1971); Flemming v. Nestor, 363 U.S. 603, 611 (1960). /5/ Allegations of systematic and unconstitutional abuse of the social security system might provide a basis for a waiver of the exhaustion requirement permitting an immediate resort to federal court on those claims, either in a class action or at the behest of an individual beneficiary. See City of New York, 467 U.S. at 482-486; Mathews v. Eldridge, 424 U.S. at 328-332; Weinberger v. Salfi, 422 U.S. at 763-767. This Court's cases make clear, however, that such a suit would still fall within the broad boundaries of Section 405(g). City of New York, 476 U.S. at 484-485; Mathews v. Eldridge, 424 U.S. at 327; Weinberger v. Salfi, 422 U.S. at 757. Thus, although declaratory and injunctive relief would be available, the sole monetary remedy for an unconstitutional termination of benefits based on allegations of systematic abuse of the system would be restoration of those benefits and an award of back benefits. /6/ Incredibly, respondents argue (Br. 32-33) that because they prevailed at the administrative level they were somehow cheated out of a judicial decision that their constitutional rights were violated. They contend that this Court should provide an implied action for additional damages simply in order to give them Article III standing to continue to pursue their claims in federal court. Respondents have put the cart before the horse, arguing not as most litigants do that they have standing because they are entitled to damages but rather that they must be entitled to damages so as to give them standing. We need not, however, be in such a rush to inject the federal courts into every dispute. Constitutional arguments of the sort made by petitioners may be fully aired in court either when the "decision of the Secretary" is adverse to the claimant or, in circumstances in which exhaustion is properly waived, in a Section 405(g) suit brought immediately upon the termination or threatened termination of benefits. /7/ The final argument respondents make against the express congressional channelling of their claims into Section 405(g) is that "nothing in the Social Security Act or its legislative history * * * even suggests Congress was addressing remedies for governmental abuses of power" (Br. 30). This argument is just another variant on the claim that Section 405(g) does not permit an attack on "governmental abuses of power" that lead to a termination of benefits. But Section 405(g) clearly does permit such an attack and Congress therefore expressly addressed the appropriate remedies for such claims when it enacted Section 405(g) and (h). /8/ In Davis v. Passman, 442 U.S. 228 (1979), a federal employment relationship was also at issue, but the Court did not find that relationship, in the absence of a scheme of remedies for constitutional violations, to be a "special factor" sufficient to forestall a Bivens remedy. Rather, the Court stressed (442 U.S. at 247) that congressional employees had been specifically excluded from the remedial scheme available to other federal employees. Thus, "(f)or Davis, as for Bivens, 'it (was) damages or nothing.'" Id. at 245 (footnote omitted) (quoting Bivens, 403 U.S. 388, 410 (1971) (Harlan, J., concurring)). /9/ This case is, therefore, much easier than either United States v. Fausto, No. 86-595 (Jan. 25, 1988), slip op. 8, or NLRB v. United Food & Commercial Workers Union, Local 23, No. 86-594 (Dec. 14, 1987), slip op. 18, in which the Court recently concluded, based on the comprehensiveness of the statutory schemes in question, that by providing an avenue of review for certain claims Congress must have intended to preclude such review for some other claims not covered by the review provision. /10/ Congress recently extended the interim benefits provision for another year, through 1988, in Section 9009 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203 (Dec. 22, 1987). /11/ Even on their own count of persons whose benefits were terminated and later reinstated (see Resp. Br. 6), respondents would have the Court authorize 200,000 Bivens claims arising simply out of the operation of the continuing disability review program between March 1981 and September 1984. At $30,000 per claim (which respondents seek "at a minimum"), the potential personal liability of petitioners and their successors during that period is $6 billion. Amicus NMHA, et al. (Br. 27) blithely assures the Court that "a few successful Bivens actions against petitioners will no doubt keep petitioners on their toes and result in a decreasing number of lawsuits against them." Such personal liability will not keep anyone "on their toes." It will either knock them off their feet or send them running to the private sector. With well over 75 million beneficiaries of the various social security programs, defending Bivens actions would become a full-time job in itself for the head of HHS. No one could be found, either rich enough or poor enough, to sustain such a position. /12/ Nor does it add anything to insist with emphasis that such errors were not negligent or inadvertent. Adjudicative or administrative determinations, if erroneous, are rarely if ever "inadvertently" so. /13/ Indeed, it is not at all clear that, in an adjudicatory setting with meaningful appellate remedies, respondents' factual allegations make out any claim at all under the Due Process Clause. The demands of due process are satisfied by the existence of an adequate post-deprivation remedy (Mathews v. Eldridge; Parratt v. Taylor, 451 U.S. 527, 537-544 (1981)), and at least in an adjudicatory setting there is no reason for that principle to vary depending upon whether an intentional or a merely negligent deprivation is alleged to have occurred. A termination of benefits is wrongful regardless of the motive of the decision-maker if, under the SSA, the recipient is statutorily entitled to such benefits. But no deprivation of property in this context is final, so as to trigger the Due Process Clause, until the statutorily required review process has been exhausted. Cf. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) (no taking of property by zoning commission until administrative remedies have been exhausted). If such exhaustion would cause irreparable harm, then exhaustion may perhaps be waived under 405(g). But that is just a further indication that it is not necessary to transform a statutorily wrongful termination of benefits into a due process violations in order to ensure an adequate post-termination remedy. /14/ Respondents' citations (Br. 5-8) to the statements of individual senators and congressmen during the debates on the 1984 amendment, indicating that the agency purged the rolls with undue zeal, can be matched with statements from the debates on the 1980 amendments, indicating that the agency was unduly lax in keeping persons on the rolls who were not disabled. See, e.g., 126 Cong. Rec. 1196 (1980) (remarks of Sen. Long); id, at 1390 (remarks of Sen. Long); id. at 1407-1408 (remarks of Sen. Bellmon); 125 Cong. Rec. 23383 (1979) (remarks of Rep. Pickle). See also 42 U.S.C. 421(c)(2) and (3) (requiring SSA to review 65% of initial decisions made in favor of claimants); Heckler v. Day, 467 U.S. at 117. /15/ Respondents' contrary claims (Br. 5) notwithstanding, the floor debate on the 1984 amendments does not manifest any belief on the part of Congress that the agency was guilty of widespread due process violations. Rather, the debate centered on the so-called "medical improvement" issue: whether a beneficiary is entitled to a "presumption" of continued disability so that some improvement must be proved prior to termination, as many courts held (see Pet. Br. 14-15 & n.6), or whether, as the Secretary had steadfastly maintained, the continuing eligibility inquiry should focus on whether the claimant's current condition satisfies the applicable standards. Congress also debated the Secretary's nonacquiescence in adverse judicial precedent. See 130 Cong. Rec. H9834-H9838 (daily ed. Sept. 19, 1984); id. at S11452-S11470; 130 Cong. Rec. S6207-S6241 (daily ed. May 22, 1984). Congress resolved these controversies by adopting a middle ground on the medical improvement issue (see Pet. Br. 15-16 n.8) and by declining to take any position at all on nonacquiescence. H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. 36-38 (1984). Those issues, it should be stressed, are no longer in this case. There is no indication in the legislative history that Congress thought the Secretary was using secret quotas, or biased physicians or was black listing particular disabilities. To the contrary, the Senate Finance Committee noted that the 1984 amendments were necessary simply because "(t)he transition from a too loosely administered program with few post-entitlement reviews to a more tightly administered program with regular periodic reviews revealed weaknesses and ambiguities which need(ed) to be dealt with." But, the Committee stressed, "(i)t is the purpose of the Committee bill to deal with these problems while continuing the Congressional insistence that this program be tightly and carefully administered." S. Rep. 98-466, 98th Cong., 2d Sess. 6 (1984).